Madhya Pradesh High Court
Smt.Paramjeet Kaur Bhambhah vs Smt.Jasveer Kaur Wadhwa on 3 March, 2016
CR-142-2004
(SMT.PARAMJEET KAUR BHAMBHAH Vs SMT.JASVEER KAUR WADHWA)
03-03-2016
PRESENT :
Honâble Mr.Justice Alok Aradhe.
Mr.Rajendra Tiwari,learned senior counsel with
Mr.Abhishek Tiwari, learned counsel for the applicant.
Mr.Pranay Verma, learned counsel for the non-applicant.
ORDER
(03.03.2016) In this Revision under Section 23-E of M.P.Accomodation Control Act, 1961, the applicant has assailed the validity of order dated 19/01/2004 passed by the Rent Controlling Authority, Jabalpur. In order to appreciate the applicant's challenge to the impugned order, few facts need mention which are stated infra.
2. The applicant filed an application under Section 23-A(b) of M.P.Accomodation Control Act, 1961 (hereinafter referred to as 'Act') against the non-applicant. The claim in the application inter alia was based on the ground that accommodation in question, which is non-residential in nature, was let out to the non-applicant under an agreement dated 28/01/1992 by Late Sardar Kulwant Singh, who is husband of the applicant. It was further pleaded that on 06/04/1998 the applicant's husband expired. Thereafter, the non-applicant started paying rent to the applicant and thus attorned to the ownership of the applicant. The eviction of the non- applicant from the accommodation in question was sought inter alia on the ground that applicant needs the accommodation bonafide for her son namely Gurjinder Singh who wants to open an ice cream parlour in the premises in question. The non-applicant filed an application under Section 23-C of the Act and was granted the leave to defend. Thereafter, the non-applicant filed the written statement and the Rent Controlling Authority recorded the evidence of the parties and by an order dated 19/01/2004 dismissed the application filed by the applicant inter alia on the ground that the applicant has failed to prove that she is the owner of the premises in question and the applicant has not approached the Court with clean hands as she has failed to disclose the alternative vacant accommodation in her possession. During the pendency of this revision, by an order dated 2.12.2004 passed by this Court, the defence of the non-applicant against eviction was struck out. On a reference being made by learned Single Judge vide order dated 11.11.2006, a Division Bench of this Court answered the reference by stating that after granting leave to defend the Rent Controlling Authority is not required to grant any opportunity to file the written statement.
3. Learned senior counsel for the applicant while inviting the attention of this Court to order dated 02/12/2004 passed by a Bench of this Court submitted that defence of the non-applicant to the proceeding for eviction has already been struck out. It is submitted that the non-applicant has implicitly admitted the title of the applicant in respect of the suit accommodation in the application for leave to defend and in view of Section 23-D(3) of the Act, the statutory presumption is attached to the bonafide need of the applicant. It is also submitted that non-applicant has failed to lead any evidence in rebuttal to dislodge the statutory presumption in respect of the bonafide need. It is also submitted that since the applicant is a widow, therefore, she belongs to category specified in Section 23-J of the Act and was competent to file the application for eviction under Chapter III-A of the Act and all other co-owners need not have joined her in the proceeding. In support of aforesaid submissions reliance has been placed on decisions in the case of Onkar Prasad Patel V. Brijlal 1965 MPLJ N63, Smt. Krishnabai Vs. Smt. Laxmibai 1970 MPLJ 674, Harbans Singh Vs. Smt. Margrat G.Bhingardive 1990 MPLJ 112, Girish Kumar Shrivastava Vs. Punjab National Bank, Satna 2003(2) MPLJ 481 and Pandharinath s/o Ramchandra Rao Vs. Rukminibai wd/o Chotelal and other 2006(1) MPLJ
338. It is urged that the plea that the applicant is not the owner of the accommodation in question, has not been taken in the application under Section 23-C of the Act and there is sufficient material on record to arrive at a finding that the applicant is the owner in respect of the accommodation in question. In support of aforesaid submission, learned senior counsel for the applicant has placed reliance on the decisions of Supreme Court in the case of Smt. Anar Devi Vs. Nathu Ram (1994) 4 SCC 250, Pal Singh Vs. Sunder Singh (Dead) by Lrs and Others (1989) 1 SCC 444 and Keshar Bai Vs. Chhunulal A.I.R. (2014) SC 1394.
4. On the other hand, learned counsel for the non-applicant has invited the attention of this Court to the sale deed filed by the applicant before this Court as well as the date of dissolution of partnership and Will (Exhibit-P-15) dated 05/08/1974 to submit that from the aforesaid documents, the title of the applicant in respect of accommodation in question is not even remotely proved. It is further submitted that in a proceeding under Section 23-A(b) of the Act the applicant is required to prove the ownership. It is urged that the landlord can be said to be the owner if he has the right to evict the tenant and then to retain, control, hold and use the property for himself rather on some one's behalf and mere collection of rent would not make a person an owner. In support of aforesaid submissions, reliance has been placed on decisions of Supreme Court in Sheela and Others Vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375, and of this Court in the cases of Dayal Das (dead) through Lrs' Smt. Kamla Chenani and Others Vs. Rajendra Prasad Gautam (2012) 2 MPLJ 460 and Asif Ali Vs. Rahandomal, 1986 JLJ 313. It is also argued that even if the defence is struck out, the defendant can still show that plaintiff is not the owner of the suit premises. In this connection, reference has been made to decision in the case of Sahiba Masood Vs. Tahabbur Ali Khan, 1998 MPLJ 610. It is also argued that the applicant is neither the owner nor a co-owner and has no semblance of title in respect of the accommodation in question.
5. It is also submitted that there is no admission in respect of title of the applicant in the application for leave to contest the prayer for eviction. It is further argued that statement made in the application under Section 23-C of the Act that Kulwant Singh is the owner of the property is factually incorrect, and an erroneous admission can always be explained. In support of aforesaid submission, reference has been made to decision of Supreme Court in the case of Nagubai Ammal and others Vs. B.Shama Rao and others AIR 1956 SC 593. It is urged that mere admission is insufficient to confer title, which does not exist. In this connection, reliance has been placed on a decision of the Supreme Court in Ambika Prasad Vs. Ram Ekbal Rai AIR 1966 SC 605 and Kedar Nath Motani and others Vs. Prahlad Rai and others, AIR 1960 SC 213. It is argued that even if the defence of the non-applicant to the proceeding for eviction is struck out, the non-applicant can submit that even on the basis of evidence adduced by the applicant, a decree cannot be passed. For this proposition, reliance has been placed to decisions of the Supreme Court in the cases of M/s Paradise Industrial Corporation Vs. M/s Kiln Plastics Products, AIR 1976 SC 309 and Modula India Vs. Kamakshya Singh Deo, AIR 1989 SC 162. It is further argued that the applicant has failed to plead the availability of an alternative accommodation and has further failed to prove as to how it is not suitable and, therefore, the bonafide need of the applicant has to be negatived. In this connection, reference has been made to the decisions in the case of Gyasi Nayak Vs. Gyanchandra Jain,2010(3) MPLJ 203 and Raj Kumar Jain Vs. Smt. Usha Mukhariya, 2009(1) MPLJ 343.
6. I have considered the respective submissions made by learned counsel for the parties and have perused the record. Before proceeding further, it is apposite to take note of the relevant provisions of the Act. The Act is enacted with a view to provide for regulation and control of letting and renting accommodation, expeditious trial of eviction cases on the ground of bonafide requirement of certain categories of landlord and generally to regulate and control eviction of tenants from the accommodations and for other matter connected therewith or incidental thereto. Chapter III-A of the M.P. Accommodation Control Act, was inserted by M.P. Act No.27 of 1983 w.e.f. 16.8.1983, which deals with eviction of tenants on the ground of bonafide requirement. Section 23-A of the Act makes a special provision for eviction of the tenant on the ground of bonafide requirement in respect of residential as well as non-residential accommodations. It also provides a forum of Rent Controlling Authority in place of civil Court for passing an order of eviction on the ground of bonafide need. The applicability of the Chapter is restricted to special category Relevant extract of Section 23-A of the Act, reads as under:-
âSpecial provision for eviction of tenant on ground of bona fide requirement:-
(a) â¦.... â¦....... â¦...........
(b) that the accommodation let for non-residential purpose is required âbonafideâ by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters, if he is the owner thereof or for any person for whose benefit the accom-modation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned:
Provided that where a person who is a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction of tenant of such accommodation shall be maintainable at the instance of such person unless a period of one year has elapsed from the date of such acquisition.
From perusal of Section 23-A(b) of the Act, it is evident that if the eviction is sought in respect of non-residential accommodation, the landlord is required to prove that he is the owner of the suit accommodation.
7. Relevant extract of Section 23-D of the Act, reads as follows:-
âSection 23-D : Procedure to be followed by Rent Controlling Authority or grant of leave to tenant to contest: -(3) In respect of an application by a landlord it shall be presumed, unless the contrary is proved, the requirement by the landlord with reference to clause (a) or clause (b), as the case may be of Section 23-A is bonafideâ.
8. The scope and ambit of the expression âownershipâ in the context of the Rent Control Act is well settled. The Supreme Court in the case of Smt. Shanti Sharma and others Vs. Smt. Vedprabha and others, AIR 1987 SC 2028, while dealing with provisions of Delhi Rent Control Act, which is parimateria with the Act, has held that - âthe word âownerâ has not been defined in the Act and has also not been defined in the Transfer of Property Act. Ordinarily, the concept of ownership may be absolute ownership, but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold the properties will only be lessees or the persons holding the land on some term from the Govt. or the authorities constituted by the State, and in this view of the matter it could not be thought of that the Legislature when it used the term âownerâ in the provision of S. 14(1)(e), it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term âownerâ has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. The Act has been enacted for protection of the tenants. But, at the same time, it has provided that the landlord under certain circumstances will be entitled to seek eviction, and bona fide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase, âownerâ thereof has to be understood and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only things which are necessary for him are to prove his bona fide requirement and that he is the owner thereof. In this context, what appears to be the meaning of the term âownerâ vis-a-vis the tenant, i.e. the owner should be something more than the tenantâ.
9. It is equally well settled legal proposition that question of title to the property has to be examined incidentally and cannot be decided finally in the eviction suit. See: Dr. Ranbir Singh Vs. Asharfilal, (1995) 6 SCC 580. Similar view has been taken by the Supreme Court in the case of Shamim Akhtar Vs. Iqbal Ahmed and another, (2000) 8 SCC 123 as well as in the case of Bhogadi Kannababu and others Vs. Vuggina Pydamma and others, (2006) 5 SCC 532.
10. It is trite law that an admission is the best piece of evidence â See: Narayan Vs. Gopal, A.I.R. 1960 SC 100. The scope and ambit of power under Section 23-E of the Act is well settled. It has been held by the Division Bench of this Court in B.Johnson Vs. C.S. Naidu, 1985 M.P.L.J. 675, that power is wider in revision, but is narrower in appeal. In the backdrop of aforesaid well settled legal proposition, the material on record may be examined. From close and conjoint scrutiny of sale deed dated 16.3.1961, deed of dissolution of partnership dated 30.6.1976 and will dated 5.8.1984 (Ex.P/15), it is not established that applicant is the owner of the accommodation in question. However, in the context of proposition of law laid down by the Supreme Court in the case of Smt. Shanti Sharma (supra) that owner should be something more than a tenant, the other material available on record may be looked into. From perusal of order dated 20.5.1999 (Ex.P/13) issued by the Chief Executive Officer of the Cantonment Board and the rent receipt (Ex.P/18), it is evident that the applicant is shown to be the owner of the house in the aforesaid documents. It is trite law that owner of the property makes payment of tax in respect of the property. From persual of Ex.P/14, it is evident that a demand notice was issued to the applicant for making payment of the property tax for the year 2001-02. In her evidence, the applicant has stated that after the death of Gurdeep Singh, an oral partition took place between Shivdev Singh and Inder Singh. Thus, from the material available on record, for the purposes of proceeding for eviction, it can safely be inferred that the applicant is something more than a tenant in respect of the accommodation in question as against the non-applicant who does not claim any title in respect of accommodation in question and is admittedly a tenant. It is also worth mentioning that non-applicant in the application under Section 23-C of the Act has not taken a plea that applicant is not the owner of the accommodation in question. It has further been stated by the applicant in her evidence that she requires the accommodation bonafide for the purposes of her son. No evidence in rebuttal has been adduced by the non-applicant. Even otherwise, the evidence of the non-applicant cannot be looked into, as the defence of the non-applicant to the proceeding for eviction has been struck out. There is a statutory presumption with regard to bonafide need of the applicant contained in Section 23-D(3) of the Act, which has been rebutted. Therefore, the bonafide need is held to be proved.
11. For the aforementioned reasons, the finding recorded by the Rent Controlling Authority that the applicant is not the owner of the accommodation in question and has failed to prove her bonafide need, cannot but be said to be perverse. Accordingly, it is quashed and the application for eviction filed by the applicant under Section 23-A(b) of the Act is allowed with costs.
12. Admittedly, the non-applicant has deposited an amount of Rs.2,25,000/- with the applicant. At the time of hearing, learned senior counsel for the applicant submitted that he would refund the remaining amount to the non-applicant after adjusting the same towards the arrears of rent, which may be due to the applicant.
13. Since the non-applicant is carrying on the business in the premises in question, I deem it appropriate to grant four months time to the non-applicant to vacate the premises, subject to fulfillment of the following conditions:-
â1. That the non-applicant shall furnish an undertaking that within a period of one month from today before the Rent Controlling Authority that he would not sub-let or part with the suit house and shall hand-over the vacant possession to the applicant on or before 10th July, 2016.
2. The non-applicant shall tender entire arrears of rent and shall deposit monthly rent up to 10th of every calender month before the Rent Controlling Authority for the period for which accommodation remains in possession of the non-applicant.
3. The order for eviction shall be kept in abeyance up to 10th July, 2016 subject to compliance with the aforesaid conditions. In case of violation of the terms and conditions aforementioned, it would be open for the applicant to execute the order.
4. The applicant shall deposit an amount of Rs.2.25 Lacs before the Rent Controlling Authority within one month from today which shall be payable to the non-applicant.â With the aforesaid directions, the revision stands disposed of.
(Alok Aradhe) JUDGE